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Sect 4.12 Gifts and benefits

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, that came into effect on 1 July 2013. Agencies may continue to use the
guidance for reference, but should be aware that it may not reflect current legislative requirements.

Relevant Values and elements of the Code of Conduct

APS Values

  • The APS has the highest ethical standards.

APS Code of Conduct

  • An APS employee must behave honestly and with integrity in the course of APS employment.
  • An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.
  • An APS employee must not make improper use of: (a) inside information or (b) the employee's duties, status, power or authority; in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
  • An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.

Gifts and benefits

The issue of whether or not an APS employee accepts a gift or benefit is not always straightforward.

The nature of work in the APS and the relationship of the APS with external clients and stakeholders in business, other jurisdictions, non-government organisations and international governments have changed considerably in recent years. APS employees, particularly at senior levels, are now much more
likely to deal regularly with heads of corporations and senior business representatives, heads of non-government organisations and international officials. In many of these sectors, offers of gifts and hospitality are commonplace. Agencies need to provide clear guidance to their employees which recognises
the context within which they work, while ensuring that the integrity of the APS is upheld.

At times, particularly for senior employees, acceptance of offers of entertainment or hospitality can provide valuable opportunities for networking with stakeholders. For the APS to carry out its functions fairly, impartially and professionally, however, and for the public to be confident that it will
do so, APS employees must be able to demonstrate that they cannot be improperly influenced in the performance of their duties by offers of gifts or other inducements.

When a public servant receives an offer of a gift or benefit, it is important that they consider the ethical issues involved and that there is an open and transparent process in the agency for discussing such issues. It is important to consider every offer on its merits, taking into account the relationship
of the organisation making the offer with the agency.

The main risk of accepting a gift or benefit is that it may result in an actual or perceived conflict of interest. At the extreme, it could be perceived as a bribe, which is an offence under the Criminal Code and a breach of the APS Code.

When deciding whether to accept a gift or benefit, the reputation of the APS is paramount. A useful test is for employees to consider how they might answer questions from a parliamentary committee. If it would be embarrassing, then perhaps the gift or benefit should not be accepted.

There may be times when it is appropriate for an employee to accept a gift on behalf of their agency, rather than on their own behalf, for example from an international delegation. In diplomatic circles, it may cause embarrassment to reject offers of minor gifts.

If an employee is uncertain about whether they should accept a gift or benefit, they should discuss the matter with their manager or supervisor.

It is not possible to establish set rules about accepting gifts or benefits as it is contingent on the circumstances. In some instances accepting even minor benefits may be construed as undermining public confidence—for example, when a tender process, either for the procurement of goods and services
or sale of assets, involving the provider of the gift or benefit is under way, or when public servants are administering regulation directly affecting the individuals or organisations concerned. Agencies' guidelines and CEIs should be used to clarify particularly sensitive areas. Employees should make
themselves aware of relevant agency-specific guidelines and CEIs.

When developing policies about accepting gifts and benefits, agencies should clarify in what circumstances accepting a gift or benefit may be appropriate, taking into account the agency's functions and objectives, the roles of employees within the agency and the types of relationships employees may
have with organisations and people who may offer gifts or benefits.

A gift or benefit may include:

  • offers of cash or shares
  • gifts, such as bottles of wine, manufacturer's samples or personal items
  • promotional materials, including clothing, books, compact discs or DVDs
  • sponsored travel
  • benefits under loyalty schemes, such as frequent flyer schemes
  • airline competition prizes
  • meals or other hospitality
  • accommodation and hire car discounts
  • entertainment, such as meals, seats at sporting or theatre events or golf days
  • discounts on commercial items
  • free or discounted places on training and development courses (other than contra-deals associated with the presentation of papers).

Acceptance of gifts or benefits will not usually be appropriate from a person or company if they are:

  • involved in a tender process with the agency, either for the procurement of goods and services or sale of assets; or
  • the subject of a decision within the discretionary power or substantial influence of the APS employee concerned.

Particular care should also be taken if:

  • the person or organisation is in a contractual or regulatory relationship with the Commonwealth
  • the organisation's primary purpose is to lobby Ministers, Members of Parliament or agencies.

If a gift or benefit is accepted, it is prudent to disclose or register its approximate value. All valuable gifts or benefits should be registered. (Ministers and all Senators and Members are required to register benefits from official sources valued at $750 or more and $300 or more from private sources).

It should not be assumed, however, that gifts of minor value are acceptable. Even token gifts that carry a company's logo can create, in some circumstances, a perceived conflict of interest. For example, an employee from a purchasing area wearing clothing bearing the logo of a particular supplier could
send a very inappropriate message to competing organisations.

Employees should be aware of agency-specific policies about accepting gifts and benefits; such policies should apply to members of an employee's family, where acceptance may impact on the employee's official duties.

Accepting fees

Generally, it is expected that APS employees will not accept outside payment for activities considered part of their normal duties. If an employee is offered a fee to speak at a work-related conference, it may be accepted providing the agency receives the benefit, not the individual.

It is good practice for agencies to inform suppliers and contractors about their policy. For example, the Departments of Defence, Foreign Affairs and Trade, and Immigration and Citizenship have produced brochures to advise their suppliers and other stakeholders about their policies, stating that inducements
of any kind are unacceptable. Publishing the policy also makes it easier for employees to decline inappropriate offers by referring to the policy.

Hospitality

Agencies may provide official hospitality if it furthers the conduct of public business. Expenditure on official hospitality must be publicly defensible on the basis that the primary purpose of the event is work-related.

Offers of hospitality from sources outside the APS have the potential to cause perceived or actual conflicts of interest. However, offers of hospitality may be accepted if they genuinely assist the agency to develop and maintain constructive relationships with stakeholders.

When developing policies, agencies should consider issues that will help employees judge when it is appropriate to accept hospitality. For example, the person may wish to consider the scale of the hospitality offered, and whether it is proportional to that which the agency would provide under similar
circumstances. It is helpful if the agency informs its stakeholders about what type of hospitality is acceptable. A number of agencies have produced guidelines aimed at promoting awareness.

Sponsored travel

As a general rule, the Commonwealth pays for APS employees to travel as part of their official duties. Situations may arise, however, where a body external to the APS offers to pay for travel for an APS employee. In such cases of sponsored travel, an APS employee is being offered a benefit and it should
be treated in the same way as gifts and other benefits described earlier in this chapter.

APS employees should be aware of the following principles regarding sponsored travel:

  • the Commonwealth should meet the expenses associated with work undertaken on its behalf by its employees
  • APS employees and their agencies should avoid conflicts of interest or the appearance of such conflicts.

As a general rule, APS employees should not accept offers of travel sponsored by private organisations or groups. Sponsored travel includes cases where transport, accommodation or living expenses are paid for or provided other than from the agency's funds or the APS employee's own resources. Acceptance
of such travel may lead to the perception that the agency or the APS employee is favouring the organisation concerned or using their position to gain a benefit. Offers of sponsored travel or entertainment should be referred to the agency head for consideration.

Where an agency considers acceptance to be in the Government's interest and where practical alternative means of travel or attendance at official expense are not available, the agency may offer to contribute to the costs involved. An offer of sponsored participation in such a case should be referred
to the agency head, who may select an appropriate member of staff to attend if attendance is considered to be justified. Participation by APS employees in travel relating to the inauguration of travel services or opening ceremonies at new commercial or industrial undertakings may fall into this category.
The important criterion to be borne in mind is that the agency, or the APS as a whole, should gain and be seen to gain the benefit of the opportunity, rather than the individual undertaking the travel. This is essential to avoid giving rise to perceptions of conflicts of interest.

Sponsored travel that would not be acceptable under this guidance material is not made acceptable by being undertaken during a period of leave.

Offers of sponsorship by bodies such as an inter-governmental or international agency, another government, an educational institution, a non-profit organisation, a recognised humanitarian organisation or broad-based industry group may be acceptable.

There are some recognised instances where travel opportunities are offered on a general rather than a particular basis, such as industry familiarisation tours, or where a body such as the World Health Organisation sponsors participants in a seminar. In such cases, the source of the funding should be
reputable and apolitical, and no conflict of interest or perceived conflict of interest should be created as a result of accepting the offer.

Advice on the use of frequent flyer points accrued while travelling on official business may be found in Chapter 10.

Entertainment

Offers of entertainment are often used in private business to make relevant business contacts and improve business relationships. In some instances, accepting an offer of entertainment may improve stakeholder relationships. Attendance at significant events can provide senior public servants with opportunities
to make important business connections that will be of considerable benefit to their agencies. There may also be an important representational role for senior employees at such events. However, the agency should ensure that accepting the offer would not create an actual or perceived conflict of interest.

Accompanying a Minister is a relevant factor. Nonetheless, it is important for senior staff to appreciate the example they set for other APS employees in upholding the Values. The more prominent the entertainment event, the more important it is to be mindful of perceptions. Another option is for the
individual to pay for the entertainment.

While it may be in the interests of the agency or the government for senior public servants to accept invitations to some events, it is not appropriate for them to accept offers of paid travel or accommodation in relation to their attendance. Offers that are accepted should be recorded and declared
in SES employees' statements of interest.

Bribery and related offences

Accepting or offering a benefit that may be defined as a bribe may breach the APS Code and the Criminal Code.

Subsection 141.1(3) (receiving a bribe) of the Criminal Code makes it an offence for a Commonwealth public official to:

dishonestly ask for, receive or obtain a benefit or agree to receive or obtain, a benefit for himself, herself or another person with the intention of influencing the duties of the public official or engendering a belief that the duties will be influenced.

Such an offence has a maximum penalty of 10 years imprisonment.

In addition, subsection 142.1(3) (receiving a corrupting benefit) of the Criminal Code makes it an offence for a Commonwealth public official to dishonestly ask for, receive or obtain, or agree to receive or obtain, a benefit for himself, herself or another person where the receipt or expectation of
the receipt of that benefit would tend to influence the official or another official in the exercise of the official's duties. Such an offence has a maximum penalty of five years imprisonment.

Employees should also note that, consistent with Australia's obligations under the OECD Convention on the Bribery of Foreign Public Officials in International Business Transactions, under section 70.2 of the Criminal Code it is an offence to bribe a foreign public official, whether in Australia or
in another country. An Australian in another country who bribes or attempts to bribe an official of that country can be prosecuted for bribery in an Australian court.

Such an offence has a maximum penalty of 10 years imprisonment.

Where an employee becomes aware of information which they suspect relates to the bribery of a foreign public official by another employee, consistent with their obligations under the APS Values and Code of Conduct to behave ethically, honestly and with integrity, they should report the information
in accordance with their agency's instructions on reporting breaches of the Code of Conduct (see Chapter 17: Whistleblowing). If the information relates to a person who is not an APS employee, the employee should discuss the matter with an appropriate senior person in their agency to determine the most
appropriate course of action, including reporting the matter to the Australian Federal Police.

More information is available on the Attorney-General's Department website at Foreign Bribery Offences.